Trouble in Fort Trumbull: Using Eminent Domain for Economic Development in Kelo v. City of New London

• Publication year: 2021

85 Nebraska L. Rev. 547. Trouble in Fort Trumbull: Using Eminent Domain for Economic Development in Kelo v. City of New London

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Trouble in Fort Trumbull: Using Eminent Domain for Economic Development in Kelo v. City of New London

TABLE OF CONTENTS

I. The Trouble Begins
................................................. 547
II. History and Background ............................................ 550
A. History of Eminent Domain ...................................... 550
B. The Development Timeline ....................................... 553
III. The Case of Kelo v. City of New London ........................... 555
A. The Connecticut Supreme Court Decision ........................ 555
B. The United States Supreme Court Affirms the
Connecticut Decision .......................................... 556
IV. The Court's Decision in Kelo Signals a Further Descent
down a Slippery Slope ............................................. 558
A. Further down the Slope ......................................... 558
B. Under Heightened Judicial Scrutiny, the New
London Takings May be Constitutional ........................... 563
C. Planning for the Future: Avoiding the Implications
of Kelo in Nebraska ............................................ 564
1. Avoiding Kelo Through State Constitutional
Interpretation .............................................. 565
2. Avoiding Kelo Through Legislative Action .................... 568
V. Conclusion ......................................................... 573

I. THE TROUBLE BEGINS

A traveler passing through the Fort Trumbull area of New London, Connecticut, in recent years would likely not find it all that notewor

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thy. The area is not home to shiny skyscrapers or fancy hotels.(fn1) There are few modern architectural designs at which to marvel. Instead, the area is dotted with seemingly "ordinary" single-family homes, apartments, and other structures.(fn2) While the area may not be as aesthetically pleasing as wealthier or more modern neighborhoods, it is still home to many residents. Some local residents have lived in the same houses for decades. Others have only recently moved to the area but nonetheless have quickly come to appreciate the scenery and proximity to the water.(fn3) Still others have owned investment properties in the area for several years and have continuously spent time and money on improvements.(fn4)

As citizens of the State of Connecticut and the United States, these property owners are afforded the constitutional assurance that the government will be precluded from taking their property absent two requirements: the taking is for a "public use" and the owners receive "just compensation" for their property.(fn5) These constitutional limits imposed upon the government are clearly necessary. Without such restraints, the government could whimsically divest individuals of arguably their most valuable asset. Balanced with this right to freely possess property is the governmental need to acquire land for the purpose of building highways, railroads, and other large-scale public projects.(fn6) Regardless of the disputes that may erupt concerning the adequacy of monetary compensation for the view enjoyed from one's front porch or from the comfort of a life-long home, the Founders of this country thought it necessary to afford the sovereign with such power as long as the property was being taken for a public use.(fn7)

Because the power of the government to exercise eminent domain is confined to public uses, legislators, courts, and scholars have long debated the appropriate interpretation and meaning of the phrase "public use." Over the course of the twentieth century, interpretation of public use has grown exceedingly broad.(fn8) The most recent attempt to broaden the meaning of public use has arisen in the context of governmental takings purely for the purpose of economic redevelopment. Illustratively, in January 2000, the City of New London, Connecticut,

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acting pursuant to Connecticut law, authorized a development corporation to exercise the power of eminent domain in conjunction with its plan to economically rejuvenate the distressed Fort Trumbull area.(fn9) The power was to be exercised only if negotiations with property owners proved unsuccessful.(fn10) Upon the refusal of Susette Kelo and a handful of her neighbors [hereinafter property owners] to accept the development corporation's monetary offers, eviction notices were tacked to their doors the day after Thanksgiving in November 2000.(fn11)

The property owners sought to enjoin the development corporation from exercising the city's eminent domain powers,(fn12) claiming that the use of eminent domain would ultimately benefit private entities. Eventually, the United States Supreme Court found the dispute at its doorstep, granting certiorari to the decision of the Connecticut Supreme Court which ruled wholly in favor of the city.(fn13) On review, the Court upheld the decision, affording great deference to the determination of the Connecticut General Assembly.(fn14)

This Note illustrates that by affording such a high level of deference to state legislature's determination that economic development is a legitimate public use pursuant to the Takings Clause of the United States Constitution, the Court markedly extended its prior eminent domain precedent and lessened the constitutional rights of individual landowners. These rights have been slowly eroded over the past fifty years, and the Court's decision in Kelo serves as a signal that this erosion will continue indefinitely. As is demonstrated throughout this Note, it is now up to the individual states--either through state constitutional interpretation or legislative action--to counterbalance the Kelo decision and refortify the fundamental right to possess individual property.

Part II of this Note provides a general overview of the progression of eminent domain jurisprudence as well as New London's development plan. Part III presents a detailed factual background of the case of Kelo v. City of New London. Particular attention is paid to the statutory and constitutional analysis applied by the Connecticut Supreme Court as well as the United States Supreme Court. Part IV provides a critical analysis of the Court's majority opinion, revealing a subtle, yet significant departure from its prior precedent when faced with the re

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sponsibility to review the constitutionality of the proposed use of eminent domain. Finally, this Note presents suggestions for reestablishing the rights of individual property owners. A suggestion for heightened judicial review of economic development takings devised by the Michigan Supreme Court in County of Wayne v. Hathcock(fn15) is examined as well as state legislative action with a special emphasis on the State of Nebraska and the recent response of the Nebraska Unicameral.

II. HISTORY AND BACKGROUND

While most legal scholars and commentators would likely agree eminent domain is necessary at least to some degree, the debate over the breadth of this power is alive and well. In response to a handful of landmark decisions from the United States Supreme Court, states like Connecticut have enacted statutes giving the government wide discretion in exercising this power.

A. History of Eminent Domain

The Fifth Amendment to the United States Constitution provides in pertinent part that "private property [shall not] be taken for public use, without just compensation."(fn16) Traditionally, the government has exercised this power to further the implementation of projects clearly for use of the public, such as the construction of roads, railways, dams, and other projects providing for public utility.(fn17) The government's retention of this ability is of paramount importance. Without reserving such power in the sovereign, it would be virtually impossible to assemble miles upon miles of contiguous land for the creation of necessary improvements such as the interstate highway system. Regardless of how inclusive or exclusive the drafters of the Constitution intended this power to be, over the last half of the twentieth century, courts became increasingly receptive to a broader interpretation.(fn18) As one commentator noted,

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During the twentieth century . . . governments began to employ eminent domain for purposes whose public utility was strained, if not tenuous. This trend has continued until the present, and it is now a rather routine occurrence for the homes and businesses of private citizens to be claimed by the government and transferred to private entities in pursuit of a more efficient use of the land.(fn19)

Two landmark decisions from the United States Supreme Court, Berman v. Parker(fn20) and Hawaii Housing Authority v. Midkiff,(fn21) have fueled this expansive understanding and are often used to demonstrate the Court's willingness to afford the phrase a broad interpretation.(fn22) In Berman, the Court was asked to determine whether taking land within an area deemed "blighted" for the purpose of community redevelopment was consistent with the Takings Clause.(fn23) Specifically, the dispute was brought by a business owner who happened to own property within a blighted area tagged for redevelopment although his particular property was not in fact blighted.(fn24) The owner did not object to the rejuvenation of his neighborhood, but contended that since his property was not classified as blighted, he should be able to remain in his present location.(fn25) The Court disagreed, and found that the comprehensive plan developed by Congress was entitled deference. Thus, the Court reasoned, if Congress deemed the removal of all existing structures an integral component of its plan, it was not the Court's place to disagree.(fn26) The Court ultimately found that "attack[ing] the problem of the blighted parts of the...